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en-usTechdirt. Stories filed under "youtube"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Tue, 1 Nov 2016 16:30:52 PDTYouTube Finally Buries The Hatchet With GEMA, Meaning People In Germany Can Watch Videos AgainMike Masnickhttps://www.techdirt.com/articles/20161101/14393535937/youtube-finally-buries-hatchet-with-gema-meaning-people-germany-can-watch-videos-again.shtml
https://www.techdirt.com/articles/20161101/14393535937/youtube-finally-buries-hatchet-with-gema-meaning-people-germany-can-watch-videos-again.shtmlnoted that the fight between German collection society GEMA and YouTube had gone on way too long, it looks like it's finally been settled. If you don't know, way back when, GEMA, which is effectively a mandatory copyright royalty collector in Germany, demanded insane rates for any music streaming on YouTube. Apparently, it initially argued that a stream on YouTube was no different than a purchase on iTunes, and thus it should be paid the same rate. In 2009, it asked for 17 cents per video view (which was a decrease from the 37.5 cents per stream it had asked for earlier). 17 cents. Anyone who knows anything about how the internet works and how advertising works knows that's insane. YouTube was paying out a decent chunk of its advertising revenue to other collection societies at a fraction of a penny per view, which is inline with the potential ad revenue.

This created a huge mess in Germany, where tons of YouTube views were blocked -- even when the creators have properly licensed the music. GEMA just threw up a big "no." This is why, when I was in Berlin a few years ago, talking with musicians, one of them showed me how his band had an "official" website that GEMA knew about and an unofficial secret "real" website, where his band could actually distribute its own music, without GEMA interfering. Think about that for a second. GEMA was regularly blocking musicians from doing what they wanted with music so it could try to shake down YouTube/Google for ransom.

And it went on until now. Six or seven years ago, Germany was the only major country where the local collection society could not come to an agreement with YouTube and it took until now to finally sort this out. There's no word on the final amount, though I imagine it will come out at some point. GEMA is crowing about the fact that this will cover payments back to 2009, though, since so many videos on YouTube in Germany were blocked from that point onward, think of all the views and all the money that GEMA deliberately blocked users from ever receiving. Either way, the common practice of seeing that a video is "not available" in Germany is now mostly over. There are apparently some videos, for music not represented by GEMA that will remain blocked, but this is a big step forward.

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]]>took-'em-long-enoughhttps://www.techdirt.com/comment_rss.php?sid=20161101/14393535937Thu, 6 Oct 2016 09:41:03 PDTYouTube Takes Down European Parliament Video On Stopping Torture For 'Violating Community Guidelines'Mike Masnickhttps://www.techdirt.com/articles/20161006/00445835727/youtube-takes-down-european-parliament-video-stopping-torture-violating-community-guidelines.shtml
https://www.techdirt.com/articles/20161006/00445835727/youtube-takes-down-european-parliament-video-stopping-torture-violating-community-guidelines.shtmldemanding that YouTube take down any "terrorist" videos. For reasons I still don't understand, YouTube complied. As a result, watchdogs documenting Syrian atrocities had them censored from YouTube, because YouTube determined them to be in "violation" of its guidelines in publishing "shocking and offensive videos."

That was a few years ago, and it seems like the problem has only gotten worse -- as have the ridiculous calls for YouTube and other platforms to be the giant censor in the digital sky. The latest victim? Would you believe it's the European Parliament itself? Marietje Schaake, a really wonderful Member of the European Parliament (and a Techdirt reader), tweeted that the video she had posted of a European Parliament debate on "anti-torture" was taken down for "violating community guidelines." Really.

Danger of automated content removal:YouTube took down my video of the anti-torture debate in the European Parliament! pic.twitter.com/ZwhPxlkvXk

As you can see, her account was assessed a "strike" for posting a video of a European Parliament debate about torture. And it notes that if she receives two more such strikes, she may lose her account. Of course, it's quite likely that this was some sort of automated system trying to stop videos on "torture" or somesuch, but really, this is the kind of thing that should keep people worried about all these demands to make platforms censors of "terrorism" or other "bad" stuff. You inevitably get these types of errors. And while it's likely that with enough attention, YouTube will magically reverse its ridiculous position on this video, not everyone is able to get that kind of attention. It makes you wonder what other content is getting blocked because some algorithm, or some clueless individual, can't be bothered to understand what's happening.

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]]>really-now?https://www.techdirt.com/comment_rss.php?sid=20161006/00445835727Thu, 4 Aug 2016 09:25:00 PDTEven The Usual Defenders Of The RIAA Are Pointing Out They're Simply Lying About YouTubeMike Masnickhttps://www.techdirt.com/articles/20160803/15401335148/even-usual-defenders-riaa-are-pointing-out-theyre-simply-lying-about-youtube.shtml
https://www.techdirt.com/articles/20160803/15401335148/even-usual-defenders-riaa-are-pointing-out-theyre-simply-lying-about-youtube.shtmlDigital Music News site is a worthwhile read, often turning up some really interesting news. However, the site pretty consistently takes the legacy music industry's point of view in the various debates on copyright and music services. To me, it has a somewhat unfair bias against many of the new innovators and music platforms that have helped drag the industry (kicking and screaming all the way) into the internet era. But it's still well written and thoughtful, and I appreciate the work that Paul does, even if I don't always agree with his opinion. So consider it quite a surprise to see Resnikoff call out the RIAA on its completely bullshit attacks on YouTube over the past few months. Resnikoff isn't pulling any punches. He points out that basically all of the music video views on YouTube are licensed, and ContentID (for better or for worse) has basically made it easy for the labels to do a "notice and staydown" like they've been demanding for the past few years:

But new data not only shows that YouTube isn’t breaking the law, they aren’t even abusing existing copyright law.
A recent report from music industry research group Midia revealed that just 2% of YouTube’s music video content is
unauthorized. These are illegal UGC uploads of concerts, lyrics videos, the actual videos, or other material that rights
owners didn’t green light beforehand. The rest, about 98%, are not only completely authorized, about 75% of them
are high-quality and supplied by the labels themselves through Vevo, according to the same dataset.

So, if just 2% of music videos are unauthorized and can be taken down using DMCA procedures, what’s the problem
here? The Recording Industry Association of America, an organization that represents the three major labels, has
been leading the charge against widespread DMCA abuse by video giant. “YouTube takes advantage of the dysfunctional
DMCA to do less about piracy than it could and pay unfairly low royalty rates,” RIAA chief executive Cary Sherman
declared. “It doesn’t have to be like this.”

But is that even true? Adding to the confusing is Content ID, a system created by YouTube to allow content owners
to automatically flag their content if it appears on YouTube without permission. Once identified, the owner has the
option to remove that content, monetize it, or even strip the audio out of it (for example, if paired with a group of
people singing karaoke). YouTube says that system, part of a self-contained copyright ecosystem, makes the DMCA
irrelevant in most situations. In other words, if you don’t want your video on YouTube, then you should just remove
it.

To be clear, looking at the details from Midia itself, it's not saying that only 2% of the videos are unauthorized, but 2% of music video views on YouTube are of unauthorized videos. And that's still an important point. It suggests that, contrary to what the industry likes to claim, the kids these days aren't spending very much time at all using YouTube to watch unauthorized streams. It's almost non-existent. The same report also found that music represents just 12% of all YouTube viewing time. That kinda shows how the claims of the industry about how YouTube is supposedly only successful because of music uploads is complete hogwash.

He notes that most musicians themselves recognize the promotional value of YouTube as well, and they'd probably freak out if the labels removed their videos from YouTube (remember, for all the hype about Taylor Swift removing her music from Spotify and other streaming services... she kept her YouTube videos up). As Resnikoff points out, the labels are upset about the amount of money that YouTube pays, but it's pretty clear that the overall value that YouTube provides in terms of audience, exposure, marketing and, yes, some money, is clearly worth it:

It’s a simple economic calculation: YouTube offers more value than just a fractional penny rate, and artists and labels
are making a calculation that it’s worth it. Otherwise, they would leave.

He goes on to point out that the RIAA's complaints make no sense other than as whining because they're upset that Google is so rich... and they're not.

In the end it's good to see this data. To hear some in the recording industry explain things, you'd think YouTube is entirely built off of pirated music. I've literally seen some musicians complain that YouTube deliberately allows piracy because that's the only thing that keeps the site afloat. That appears to be based on conspiracy theories, not reality.

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]]>look at thathttps://www.techdirt.com/comment_rss.php?sid=20160803/15401335148Sat, 23 Jul 2016 09:00:00 PDTAwesome Stuff: Don't Miss Our New Takedown T-Shirt/Hoodie!Leigh Beadonhttps://www.techdirt.com/articles/20160723/08210535047/awesome-stuff-dont-miss-our-new-takedown-t-shirt-hoodie.shtml
https://www.techdirt.com/articles/20160723/08210535047/awesome-stuff-dont-miss-our-new-takedown-t-shirt-hoodie.shtml
Did you hear? Yesterday, we launched our latest t-shirt on Teespring. It's a re-vamped version of our classic DMCA tee: the Takedown T-Shirt. In addition to men's and women's t-shirts for $20 each, we've reduced the price of hoodies to $35 and added some new color options including royal blue and forest green!

This initial run is available until Monday, August 1st, after which point your only choice will be to reserve one and wait until the campaign reboots — so if you want to get your hands on one soon, don't delay and order yours now!

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]]>censorship!https://www.techdirt.com/comment_rss.php?sid=20160723/08210535047Thu, 7 Jul 2016 15:58:33 PDTTwo YouTubers About To Learn That Trust Is A Valuable Commodity That You Can Only Lose OnceTimothy Geignerhttps://www.techdirt.com/articles/20160706/06463534900/two-youtubers-about-to-learn-that-trust-is-valuable-commodity-that-you-can-only-lose-once.shtml
https://www.techdirt.com/articles/20160706/06463534900/two-youtubers-about-to-learn-that-trust-is-valuable-commodity-that-you-can-only-lose-once.shtml
While we've had some reservations in the past about the FTC's guidelines on endorsements and testimonials in the online arena, our concerns have tended to be about the grey areas of the law. The way that reviews for books, music and games often work falls into this grey area, with products and media handed out for review, and the disclosure guidelines the FTC laid out seem overly intrusive. Whatever our reservations about those guidelines, however, the goal of preventing the surreptitious pimping of a product or service by a trusted source that has direct connections with it was laudable.

Which brings us to two YouTube personalities, TmarTn and Syndicate Project, whose real names are Trevor Martin and Tom Cassell. These two have spent a great deal of time urging their followers to use the CSGO Lotto website while, at best, barely disclosing the site's sponsorship, and never even coming close to acknowledging that they are executives of the company behind the site.

Trevor Martin and Tom Cassell, known online as TmarTn and Syndicate Project, uploaded videos in which they appeared to win big prizes playing CSGO Lotto. But it has emerged that the pair are presidents of the company, which is incorporated in Florida.

Mr Cassell apologised on Twitter to those who felt misled. In a YouTube video message to his followers, which he later deleted, Mr Martin said that the ownership of CSGO Lotto had "never been a secret".

"I created the site. I wanted to build something awesome for other people to enjoy and I played on it," he said. "Obviously, on my end, me playing on Lotto rather than other sites, gives me an advantage because it promotes my own site, but it is not immoral, there is nothing wrong with it. I am 100% honest."

Yet it's difficult to square that response with the facts. CSGO stands for Counter Strike: Global Offensive, a very popular online shooter. Within that game, players can mod their weapons with "skins", or visual modifications. Whatever that sounds like to you, please understand that there is serious money in the use, trading, and selling of these skins. That in turn has spawned websites that allow you to gamble these skins, wagering them to potentially win more valuable skins at the end of a game, with winners supposedly chosen at random. For this, CSGO Lotto has an 8% rake on the value of the skins given away in a round.

So, what kind of money are we talking about here? Well...

In April, Bloomberg reported that online betting on games such as CSGO was a booming industry worth billions of dollars.

Yeah, it's a big deal. Now, back to our two YouTubers and their claims of total honesty and transparency. Despite what they say, the current outrage has only come about because another YouTuber dug up the ownership details on the company behind CSGO Lotto, finding that the site's president is one Trevor Martin and its vice president is Thomas Cassell. Before those details were published? No controversy. Now that they've been published? Controversy. These two can claim they properly disclosed their associations all they want, but the fact that those disclosures didn't do the job of informing viewers that they owned the site says everything.

In short, h3h3 was unable to find any instances of Martin or Cassell disclosing affiliation with CSGO Lotto—let alone high level operation of it....

On top of that, in an earlier video about CSGO Lotto that’s since been made private (you can see it in h3h3's video above, however), Martin said things like, “We found this new site called CSGO Lotto, so I’ll link it down in the description if you guys want to check it out. We were betting on it today and I won a pot of like $69 or something like that, so it was a pretty small pot, but it was like the coolest feeling ever. I ended up following them [CSGO Lotto] on Twitter and stuff, and they hit me up and they’re talking to me about potentially doing like a skin sponsorship.” That is, as PC Gamer points out, a pretty strange way to talk about a site you helped found.

Martin has also claimed that CSGO Lotto videos did include disclosures, but if you run videos like “HOW TO WIN $13,000" through the ol’ Wayback Machine, it appears that a very slight disclosure—“video made possible by CSGO Lotto”—was added after the fact.

The wonderful thing about new media outlets like YouTube is that the barriers to gaining a following are lower. The other side of that coin, however, is that trust is the ultimate selling point, and it's the kind of thing you can only lose once. It's hard to imagine that these two will have any kind of loyal following after this episode, not to mention that the FTC is likely to come calling. They've done it before, after all.

Either way, lesson learned, boys?

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]]>paging-the-FTChttps://www.techdirt.com/comment_rss.php?sid=20160706/06463534900Mon, 23 May 2016 09:26:00 PDTYou're Entitled To Your Own Opinions, But Not Your Own Facts About Copyright, NY Times EditionMike Masnickhttps://www.techdirt.com/articles/20160520/12113134499/youre-entitled-to-your-own-opinions-not-your-own-facts-about-copyright-ny-times-edition.shtml
https://www.techdirt.com/articles/20160520/12113134499/youre-entitled-to-your-own-opinions-not-your-own-facts-about-copyright-ny-times-edition.shtmlSilicon Valley hates music, that is so chock full of out and out factual errors that it's an embarrassment for the NY Times to have allowed it to be published. Is fact checking dead at the Gray Lady? It's perhaps not as embarrassing for Taplin, who's been spewing ridiculous falsehoods for years about how technology is out to destroy all creative culture. In the past we've had to correct his blatantly false statements, but it seems odd to us that the NY Times would let him publish a piece so devoid of facts. Let's dig in and do some editing and fact checking that the NY Times apparently failed to do.

That’s a fight artists are losing. It’s been 17 years since Napster, the online file-sharing software, began flooding the Internet with free, illegally uploaded music, devastating musicians and the industry. While Napster is long gone, the looting continues, only now it is technology giants like Google and SiriusXM, along with streaming services like Pandora, that are responsible.

This is an interesting, and bizarre, claim, given that unlike Napster, the three companies named all pay a ton of money in license fees for the works in question. In fact, both SiriusXM and Pandora have struggled to reach profitability in large part because of the massive percentage of revenue that goes directly to record labels (note: not directly to the musicians themselves, which may give you a hint as to the real problem). Last fall, Pandora noted that it had paid $1.5 billion in licensing, with over $500 million of that coming in 2015 alone (and this was before the year ended). The company has shown that approximately 60% of revenue goes to licenses, and this is a capital intensive business, given that it has to stream a ton of content and bandwidth for that level of streaming is not cheap. Spotify, similarly, has claimed to pay out approximately 70% of revenue. A year ago, Spotify claimed to have paid out $3 billion, noting a run rate of over $1 billion paid to artists per year. YouTube has similarly paid out over $3 billion.

It takes quite a lot of gall to argue that these services, which didn't exist at all just a few years ago, but which have consistently moved people away from piracy by creating services that people like -- and which often pay more than 50% of their revenue in royalties, are somehow "looting" the industry. Does he not realize that without these services, it's likely that there would actually be more piracy, from which the artists would receive no direct remuneration? Would he prefer that? Or would he prefer that these companies be forced to pay even more so that they couldn't even exist any more at all, which would, once again, drive people right back to piracy? It makes no sense at all. To call this "looting" is nonsensical and not fact-based.

YouTube, which is owned by Google, is now the world’s dominant audio streaming platform, dwarfing Spotify and virtually every other service. Yet it pays artists and record companies less than a dollar a year for every user of recorded music, thanks to rampant piracy on its site (by contrast, Spotify licenses its music and pays $20 per user each year).

This is comparing apples to oranges. Spotify is just a music service. YouTube is mostly other stuff, with some music. Notice that he doesn't compare Spotify to YouTube Red or to Google Music, which are more on par.

The problem has gotten so bad that, in 2015, vinyl record sales generated more income for music creators than the billions of music streams on YouTube and its competitors.

This point was a talking point that the RIAA trotted out earlier this year and has already been debunked. Vinyl HAS NOT generated more income for music creators than music streams. That's just blatantly false. What the RIAA showed was that gross retail value of vinyl sales (i.e., ignoring actual sales price, as well as the cut that goes to retailers and other middlemen) was higher than the net amount that was paid in royalties on just ad-based music streaming (i.e., ignoring all of the subscription and paid revenue). This is worse than an apples to oranges comparison. And, even then, with those caveats, Taplin's claims go way beyond what the RIAA actually showed. The royalties from vinyl that actually went back to artists were a lot less than what went to artists from ad-supported music streaming, not to mention all music streaming.

Either Taplin is lying or he's totally misinformed.

Google has also leveraged its dominance in Internet search into a cash cow built on advertising. But Google doesn’t care if your search for the movie “Mean Streets” or the music from “The Last Waltz” (both of which I produced) brings up licensed versions or pirated copies: The company sells ads and cashes in either way. Creators, however, get nothing from those stolen copies — except the anguish of watching others grab the value of their life’s work.

Okay, let's try it. I searched for "Mean Streets" on YouTube and on Google's video search. I don't see a pirated copy anywhere. YouTube does show me a licensed version and a variety of obviously fair use clips (all less than 5 minutes). Google Video search seems to just show me the theatrical trailer and some fair use clips.

In neither search do I see an unlicensed version. A regular (not Google Video search) Google search again points to clips, but also has multiple options on where you can pay to see a licensed version. I don't see a pirated version anywhere.

Google has basic “digital fingerprinting” technology that could scrub both YouTube and its search results of illegal versions. But instead of safeguarding the work of artists, Google wields this tool as a bludgeon. Creators can either enter into a licensing agreement with YouTube at very low royalty rates, or get left at the mercy of pirates. What looks like protection for copyright holders is more of a protection racket benefiting Google.

This is blatantly false. Not only is it blatantly false, but just last week at the Copyright Office hearings in San Francisco that Jonathan Taplin attended, when someone claimed this, Fred von Lohmann from Google pointed out that it is absolutely false -- something he has now reiterated on Twitter:

What Taplin is (apparently willfully?) confusing, is that in order to use ContentID, you do need to grant Google a license, but that license is to make it legal for them to then hold the copy of the work on file for the purpose of fingerprinting. And, then, you can use ContentID to do "notice and staydown" of any matching copies. To blatantly misrepresent how Google works just days after being told this is wrong just seems... like someone with an axe to grind with no concern for the facts at all.

And all of that raises the question of why the NY Times allowed it to be published without doing even the slightest fact checking?

Unfortunately, there is a sad history of undervaluing musicians in the United States. Terrestrial radio, a $17 billion industry, pays publishing rights (payments to songwriters) but has never paid artists or record companies for music.

Yes, some could make an argument that this setup is unfair, but the market suggests otherwise. The reason that the law said that performers didn't need to be paid was because it recognized that radio was promotional. And it is. That's why every few years the recording industry gets caught up in a new scandal about payola. That is, the copyright holders of the sound recordings have long recognized that radio play is so valuable that they will pay extra money under the table to make it happen, even if that's illegal. Obviously, if the radio play wasn't so valuable, this wouldn't be happening. And yet now they want to get paid extra for that value? That seems to be the exact opposite of what the market suggests is the power dynamic here.

In addition, the satellite radio company, SiriusXM, pays below-market royalties, thanks to a giveaway it first wrested from Congress 20 years ago.

"Below market"? Based on... what? Again, SiriusXM has struggled to barely reach profitability. After years of losses, it has been profitable recently, but just barely.

Conglomerates like iHeartMedia (formerly Clear Channel Communications) and other online services like Pandora, which are required to pay artists for digital streams, have exploited federal copyright law to deny payments for work recorded before 1972 (songwriters are paid; performers are not). This means artists like Aretha Franklin, Ella Fitzgerald, Chuck Berry and John Coltrane never received a dime from AM/FM radio and or from many digital services for some of their greatest music.

The pre-1972 stuff is a long and complicated story that we've covered in detail, and has a lot more to do with the fact that pre-1972 sound recordings are not covered by federal copyright law than any willful plan to "exploit" anyone. And there's a simple solution to this: put those works under federal copyright law. But you know who's fought hard against that? Taplin's friends in the RIAA. Maybe he should take it up with them. He also ignores, of course, that Pandora recently agreed to pay $90 million for those recordings, despite it not being clear if it needs to, legally. Is Taplin asking how much of that money will actually go to artists? Hmm...

The last meaningful legislation in this area was the Digital Millennium Copyright Act in 1998, which was based on the idea that creators should monitor the Internet for illegal copies of their works and give “notice” to websites and services to take pirated material down. Under the act’s “safe harbor” provisions, any service or site that makes a minimal effort to address these notices is immune from liability for piracy or theft.

"Minimal effort"? He seems to be ignoring the vast number of lawsuits, including the one against Veoh, in which Veoh won, but had to shut down over legal fees. It also ignores the fact that basically every other platform spends a ton of money handling takedown notices.

And it ignores the fact that most services have implemented filters and tools that go way above and beyond what the law requires. Why would Taplin ignore all of this? Why would the NY Times let him do so?

That system may have made sense when it took minutes to download an illegal song. But today no individual can effectively police the millions of pirated files that mushroom online and reappear the instant after they are taken down. Google alone received almost 560 million takedown notices in 2015.

And, again, Google spent $60 million building ContentID and related tools that go way beyond what the law requires and gives copyright holders the ability to either monetize their works in new ways or to issue a "notice and staydown".

There are two concrete steps Congress can take that would allow musicians to be treated fairly. First, Congress should update the safe harbor rules of the copyright act to achieve the balance that was intended: protecting creators with effective tools in exchange for not burdening Internet companies with liability. That means strong, well-defined consequences for repeat offenders, easing the process for filing notices and ensuring that services are using the best technology to take pirated material off their sites and keep it off.

So, basically, after flat out lying throughout the piece, and pretending that Google doesn't already have these tools, he wants a law to require such tools. Note: Google already has everything Taplin is asking for. But it spent $60 million putting that together. If Taplin got what he wanted, he'd lock in Google/YouTube as basically the only players able to handle this market. Does he want new providers and services or is he trying to kill the market entirely?

Second, Congress can address the original sin of AM and FM radio and close the loophole that allows radio companies to use music without paying artists. The Fair Play Fair Pay bill, which has Representative Jerrold Nadler of New York as a sponsor, would ensure that all music creators received fair-market-value pay for their work no matter what technology or service was used to play it. It has the support of hundreds of artists like Rosanne Cash, Duke Fakir of the Four Tops, Elvis Costello, Martha Reeves, Elton John and Common.

Again, given payola, it's hilarious for him to argue that this is necessary, but he's entitled to his opinion -- just not his own facts.

In 2015, after years of battling pirates, Prince said in an interview that the Internet “was over for anyone who wants to get paid.” With Congress’s help, it needn’t be.

Prince was wrong then and he's wrong now. There are more musicians making money from the internet today than ever made money prior to the internet. There are content creators using YouTube, Spotify, Songkick, Soundcloud, Amazon, Apple, Kickstarter, IndieGogo, Patreon and many, many more services to not just make money but to build strong and lasting relationships with their fans.

Again, it's no surprise that Taplin would lie. It's kind of his thing when it comes to his misguided and misinformed anger at the very innovation that's saving the entertainment business. The question is why the NY Times, a paper that prides itself on accuracy, would allow a piece so blatantly false to be published.

But, really, the most disturbing thing about this is that it perpetuates the myth that it's "content creators" v. "the tech industry." This is nonsense. Technology has been a major force in enabling more content creators -- including myself -- to create content, to promote it, to distribute it, and to monetize it. More people than ever before are making and distributing music, videos, books, software and more... because of these tech platforms. This isn't a zero sum game. There are opportunities for everyone to benefit, and setting up this false dichotomy that when one wins the other loses, Taplin and the NY Times are actually setting everyone up to lose by not just misrepresenting reality, but totally misunderstanding the very nature of both creativity and innovation.

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]]>fact checking is deadhttps://www.techdirt.com/comment_rss.php?sid=20160520/12113134499Fri, 20 May 2016 09:38:48 PDTJohn McCain, Forgetting His Own Support Of Fair Use On YouTube, Tries To Use Copyright To Take Down His Own AdMike Masnickhttps://www.techdirt.com/articles/20160520/00145834493/john-mccain-forgetting-his-own-support-fair-use-youtube-tries-to-use-copyright-to-take-down-his-own-ad.shtml
https://www.techdirt.com/articles/20160520/00145834493/john-mccain-forgetting-his-own-support-fair-use-youtube-tries-to-use-copyright-to-take-down-his-own-ad.shtmlsent YouTube a letter, complaining that the video site did not take fair use into account when deciding to pull down videos after receiving copyright complaints. Apparently, some people had been issuing copyright claims on videos related to his campaign that he believed were fair use, and he was quite upset about it. In particular, McCain was upset about videos his campaign had uploaded that included news clips that were taken down. He insisted this was not just fair use, but that YouTube was an important platform for political speech, and should be much more careful before pulling down political videos.

If you can't read that, here are just a few choice quotes from the letter:

YouTube is to be congratulated on the groundbreaking contributions it has made to the political discourse....

... overreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech.....

... It is unfortunate because it deprives the public of the ability to freely and easily view and discuss the most popular political videos of the day....

We recognize that the DMCA provides a counternotice procedure (of which we have availed ourselves several times), but this procedure, and the way YouTube has implemented it, provides inadequate protection for political speech, particularly in the context of a fast-paced political campaign.....

From there, the McCain campaign went on to propose that political campaigns get special treatment, and that any videos associated with a political campaign get a more thorough human legal review prior to a takedown. If this sounds familiar, it's the same idea we actually heard proposed by the Copyright Office at their recent hearings. That suggestion of carving out political speech for special rights is a very bad idea, but McCain wasn't wrong to note the problem of copyright being used to censor political speech.

You know where this is heading, right? It appears that McCain's current campaign (for Senate re-election in Arizona) has... issued a copyright takedown on a video posted by Rep. Ann Kirkpatrick, who is challenging him for his Senate seat. Kirkpatrick apparently uploaded a McCain campaign ad from his 2010 Senate campaign about completing "the danged wall" on the border with Mexico, and uploaded a version with Spanish subtitles. Here's the original ad:

Obviously, "the wall" is a political hot potato -- especially this election season -- and Kirkpatrick is (quite reasonably) trying to remind voters (especially Hispanic voters) of McCain's strong support for the wall. That seems like pretty clearly protected free speech in a political campaign. The exact kind of thing that a former McCain campaign once suggested deserved extra protection as fair use. But, now he's just abusing the copyright takedown process against a rival. McCain's campaign suggestion that this was purely about copyright is laughable:

The ad in question was not blocked because of its content, according to Lorna Romero, a McCain campaign spokeswoman.

"The Kirkpatrick campaign launched a digital ad which was a clear copyright violation and YouTube agreed," Romero said.

Again, there's a strong argument that this is fair use. It's certainly not undermining the market for 2010 McCain campaign spots. And, of course, it's not like McCain created the commercial because of the copyright. The whole thing is obviously done to censor a political rival because the message is embarrassing in the context Kirkpatrick raised it in.

It seems like the McCain campaign of today, might want to refresh what the McCain campaign of 2008 had to say:

While the issues presented by YouTube and other Internet technologies are new, the need
to prevent meritless copyright claims from chilling political speech is decidedly not. Thirty
years ago, a federal judge confronting a copyright claim over the use of music in a political
advertisement correctly recognized the importance of preventing copyright from interfering with
political candidates' free and full exercise of their First Amendment right to vigorously debate
the issues of the day:

In the context of this case, the Court must be aware that it operates in an area of
the most fundamental First Amendment activities. Discussion of public issues
and debate on the qualifications of candidates are integral to the operation of the
system of government established by our Constitution. The First Amendment
affords the broadest protection to such political expression in order to assure the
unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.... [T]here is practically universal agreement that
the major purpose of that Amendment was to protect the free discussion of
governmental affairs, including discussions of candidates. This is a reflection of
our profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open. In a republic where the people are
sovereign, the ability of the citizenry to make informed choices among candidates
for office is essential, because the identities of those who are elected will
inevitably shape the course that we follow as a nation.

[....] Though the judge who wrote those words had never used YouTube, the values
he articulated are as true today as they were when he wrote them three decades ago.

And, yes, they are as true today as well. If only the McCain campaign were familiar with what the McCain campaign wrote, because right now, it appears to be doing the exact opposite, in trying to use copyright to censor political debate.

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]]>hypocritehttps://www.techdirt.com/comment_rss.php?sid=20160520/00145834493Thu, 28 Apr 2016 14:06:31 PDTGame Critic Keeps YouTube Vids Ad-Free By Creating ContentID Feeding FrenzyTimothy Geignerhttps://www.techdirt.com/articles/20160428/05581634296/game-critic-keeps-youtube-vids-ad-free-creating-contentid-feeding-frenzy.shtml
https://www.techdirt.com/articles/20160428/05581634296/game-critic-keeps-youtube-vids-ad-free-creating-contentid-feeding-frenzy.shtml
You should know by now that YouTube's ContentID system is a horrible mess. This system, which allows purported intellectual property owners to claim other people's uploads as containing their content, and then allowing those purported owners to either take the videos down or monetize them for themselves, is so rife with abuse, trolls, and mistakes that it's a wonder anyone at any point thought this was an idea that could work. Lost in all of this bowing towards intellectual property owners has bred some creative methods for getting around ContentID abuse, but it's still a problem. A problem particularly challenging in the video game reviews space on YouTube, where entirely too many game studios think that using ContentID to flag game reviews is a practice worth repeating.

But one game reviewer, Jim Sterling, decided to test out a way to keep his videos advertising-free. The method? Include all kinds of previously flagged content in his new videos from different IP owners and set them all into a ContentID war with one another.

Earlier this week, game critic Jim Sterling uploaded an episode of his Jimquisition series, where he skewers the recently released Wii U game Star Fox Zero. The entire episode is worth a watch based on Sterling's well-reasoned arguments. But the thing that really sets it apart is a revelation near the end of the video, where Sterling explains why he makes such ample use of footage that is completely unrelated to what he actually discusses throughout the video.

"You may have noticed this week's video had footage from Metal Gear Solid V, Grand Theft Auto V, and Beyond: Two Souls in it," Sterling said. "Now, there's a reason for that. The reason is Nintendo. Because I'm talking about a Nintendo game this week, I've used Nintendo game footage, and that means Nintendo will attempt to monetize this video even though the point of the Jimquisition is to be ad-free, thanks to your lovely help on Patreon."

But by including game footage that had been previously flagged through ContentID by other studios, particularly studios known to not try to monetize game reviews, he created a ContentID race between the different studios. The result?

"I can confirm it works," Jim Sterling said over email. "It's worked several times before. WMG tried to monetize the video for the Erasure music, but couldn't because Nintendo and Take-Two had set their ContentID in this particular case to Not Monetized."

It's like beating cancer by contracting herpes and having the herpes eat the cancer... or something like that. Look, I didn't go to medical school, alright? The loophole in the ContentID system is that it's not like all kinds of people can flag a video for monetization. It appears to be a first-to-flag-wins sort of scenario. So, just include some completely unrelated footage from a studio that is known to flag reviews as "Not Monetized" and the content remains ad-free.

It's clever, to be sure, but some of us long for the day when such workarounds aren't needed just to produce a simple video game review.

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]]>sharks-in-the-waterhttps://www.techdirt.com/comment_rss.php?sid=20160428/05581634296Thu, 17 Mar 2016 13:48:00 PDTYouTube Flips, Now Thinks T-Mobile's Abuse Of Net Neutrality Is Ok, Following A Few Small ChangesKarl Bodehttps://www.techdirt.com/blog/netneutrality/articles/20160317/09061833931/youtube-flips-now-thinks-t-mobiles-abuse-net-neutrality-is-ok-following-few-small-changes.shtml
https://www.techdirt.com/blog/netneutrality/articles/20160317/09061833931/youtube-flips-now-thinks-t-mobiles-abuse-net-neutrality-is-ok-following-few-small-changes.shtmlexempts the biggest video services from the company's usage caps (aka "zero rating"). Net neutrality advocates quickly complained that the practice violated net neutrality, since the very act of giving some companies an advantage automatically disadvantages some others. After T-Mobile spent some time lying about the nature of the program, the EFF came out with a detailed report noting that T-Mobile was just throttling all video files back to 1.5 Mbps, whether the content was being streamed or directly downloaded.

Net neutrality advocates like the EFF argued that the program at the very least should be opt in instead of opt out, concerns that T-mobile continues to ignore. YouTube similarly initially complained about the program and that video partners were being throttled by default. But in a matter of months, Alphabet/Google appears to have completely changed its mind, issuing a new blog post that says it's now partnering with T-Mobile to zero rate Google Play Movies and YouTube content traveling over the T-Mobile network.

According to YouTube, T-Mobile made a number of changes to Binge On that satisfied YouTube's concerns, including new "short codes" that let users more easily opt out. T-Mobile also apparently was willing to listen to YouTube's concerns about throttling partner services by default with no dialogue between companies:

"While T-Mobile has always stated that any video service can join the program at no charge, prior to our discussions, video services were not given a choice about whether their streams would be managed by T-Mobile if they did not join the program. Going forward, any video service meeting traffic-identification requirements will be able to opt-out, and T-Mobile will stop including them in the Binge On program and will no longer modify their video streams. In addition, T-Mobile will now work with video services that wish to optimize their own streams, using an average data rate limit. This allows video services to offer users an improved video experience, even at lower data rates, by taking advantage of innovations such as video compression technology, benefiting T-Mobile, their customers, and video providers.

To be clear it's good that T-Mobile is being slightly more transparent, even though it lied pretty consistently about what it was actually doing in the first place. It's also great that the company is providing better, simpler opt-out tools for consumers (dial #263# to turn Binge on off, and dial #266# to turn it on again). And it's also a major improvement that T-Mobile's letting video service providers opt out, while giving companies more control over precisely how video traffic is managed. The problem is that none of this solves the core problem with zero rating: the horrible precedent set by zero rating in the first place.

The superficial consumer lure of "free data" overshadows the fact that zero rating, no matter how much lipstick you put on it, still puts some companies at a market disadvantage. In a press release announcing YouTube's inclusion, T-Mobile crows that there's now 50 Binge On video partners. But how many video services exist on the Internet? 500? 1000? How many non-profits, educational services, startups, and independents still aren't being whitelisted by T-Mobile's systems? How many even realize they're being put at a market disadvantage to bigger companies?

By opening the door to zero rating a sliver, we've opened the door to fundamentally changing how Internet business works. That's why numerous regulators in India, Japan, The Netherlands and elsewhere have banned zero rating outright. Here in the States, the FCC, wary of hindering usage cap driven "innovation," decided to let the zero rating story play out, addressing anti-competitive behavior on a "case by case basis." But the FCC has failed to act, and that failure has not only resulted in T-mobile's Binge On (potentially bad), but companies like Verizon and Comcast now exempting their own content from caps (immeasurably worse).

Despite its faux-punk-rock consumer friendly rhetoric, T-Mobile has never been a fan of net neutrality, repeatedly coming out against both net neutrality rules and the FCC's Title II push. Google, once a net neutrality champion, has consistently weakened its position on the subject as it realized it too could benefit from a distorted playing field (especially in mobile).

Because users get "free data" doesn't mean zero rating is a good idea. Because YouTube's now happy that it has a little more control, doesn't make zero rating a good idea. Because users and companies can opt out, doesn't negate zero rating's negative impact on the Internet economy. Because all-too-many consumers, analysts and journalists don't really understand what's happening here doesn't make zero rating a good idea. Setting arbitrary usage caps and then letting some companies bypass them aggressively distorts the entire landscape of the Internet. But because so many folks still don't appear to understand this, we're down the zero rating rabbit hole. And it's not really clear if we're ever coming back.

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]]>sometimes a duck is still a duckhttps://www.techdirt.com/comment_rss.php?sid=20160317/09061833931Mon, 1 Feb 2016 03:29:21 PSTYouTube Wins This Round In Germany In The Stupid Neverending War With GEMA Over Streaming RatesMike Masnickhttps://www.techdirt.com/articles/20160129/15494333464/youtube-wins-this-round-germany-stupid-neverending-war-with-gema-over-streaming-rates.shtml
https://www.techdirt.com/articles/20160129/15494333464/youtube-wins-this-round-germany-stupid-neverending-war-with-gema-over-streaming-rates.shtmlyears, the big German music performance rights organization GEMA has been at war with YouTube over what rates YouTube must pay for any streamed music. It started with GEMA more or less arguing that a stream on YouTube was effectively the same as a purchased download on iTunes, and that it should get $0.17 per stream (yes, per stream). For anyone who understands even basic economics you'd recognize that's not even remotely in the realm of reality. The battle has gone on ever since, and unlike basically every other country in the world GEMA has refused to budge. Because of this YouTube has blocked most major label music from its service in Germany, while GEMA has filed a variety of lawsuits against YouTube in the country arguing that YouTube is somehow responsible for what YouTube users upload.

In the latest round, YouTube scored a victory as a court rightly found that YouTube is a neutral platform and not liable for a user's uploads. According to David Meyer at Fortune:

On Thursday, the higher regional court of Munich rejected GEMA’s claim for damages to the tune of around €1.6 million ($1.75 million). If you’re wondering, that figure represents royalties for 1,000 music videos chosen as examples, at a rate of 0.375 euro cents per view. The court upheld a judgement by the lower regional court in Munich, which said YouTube is just a host for uploaded video.

Meyer also notes that GEMA will likely appeal, so it's not over yet. He also notes, of course, that the rate demanded, while still insane, is at least lower than what GEMA was originally asking for.

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]]>copyright insanityhttps://www.techdirt.com/comment_rss.php?sid=20160129/15494333464Tue, 26 Jan 2016 10:39:14 PSTGuitar Hero YouTuber Sings Acapella Version To Get Around ContentID Takedowns... Probably Is Still Violating Copyright LawMike Masnickhttps://www.techdirt.com/articles/20160125/17204033417/guitar-hero-youtuber-sings-acapella-version-to-get-around-contentid-takedowns-probably-is-still-violating-copyright-law.shtml
https://www.techdirt.com/articles/20160125/17204033417/guitar-hero-youtuber-sings-acapella-version-to-get-around-contentid-takedowns-probably-is-still-violating-copyright-law.shtmlGuitarHeroFailure (misleading, because the guy's actually good at the game) tried to get around YouTube ContentID takedowns on one of his Guitar Hero videos (of Ozzy Osbourne's "Bark at the Moon") by singing an acapella version of the song over it. The overall effect is really quite amazing. Watch the video (and don't miss his, um, "variation" at the very end) below:

The guy claims, in a separate video that he wasn't really trying to comment on copyright law (he actually says "YouTube's copyright laws," which, you know, aren't actually a thing). But, no matter what it is commenting on it. He notes that he was really proud of how well he did in that particular game, and was disappointed that it got taken down by YouTube.

But, even if he didn't mean for it to be a comment on copyright law, it absolutely is. But here's the craziest part. It's likely that his new video also violates copyright law. Because, remember, when it comes to music licensing in particular, copyright law is insane. There are multiple licenses that you need. There's one for the sound recording -- and in this case, he doesn't have to deal with that one. But, if you're doing a cover song, you need a mechanical license for the composition of the song. And then, the fact that it's been put on a video raises a whole separate issue, which is the need for a totally different license called a synch license, for when you use a composition with a video.

Of course, YouTubers rarely (i.e., basically never) get such licenses at all, and it's mostly ignored by everyone. But that doesn't mean it will always be. And, again, that highlights the absolute insanity of music licensing these days. People are doing stuff that clearly is not taking away anything from the market for the original music, but because of the messy, patchwork setup of copyright laws and music licensing, it's almost impossible to be fully compliant no matter what you do.

And don't even get me started on the copyright questions raised by this other video in which someone took GuitarHeroFailure's acapella and synched it to the original Ozzy song. Because, really, there aren't enough hours in the day to analyze that mess...

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]]>because-copyright-law-is-fucked-uphttps://www.techdirt.com/comment_rss.php?sid=20160125/17204033417Mon, 4 Jan 2016 10:37:22 PSTT-Mobile Is Flat Out Lying: It's Throttling Video Even Though It Says It's NotMike Masnickhttps://www.techdirt.com/blog/netneutrality/articles/20151231/18201233216/t-mobile-is-flat-out-lying-throttling-video-even-though-it-says-not.shtml
https://www.techdirt.com/blog/netneutrality/articles/20151231/18201233216/t-mobile-is-flat-out-lying-throttling-video-even-though-it-says-not.shtmllying, because they will choose their words carefully, in a manner that clearly misleads or distorts, but is not necessarily outright lying. T-Mobile, however, appears to be flat out lying. We recently wrote about the charges from YouTube that T-Mobile was throttling YouTube videos as part of its Binge On program that zero rates video on mobile phones so it doesn't count against data caps. We noted the problems with this program when it launched, but YouTube's claims take it even further.

Again, the program supposedly "optimizes" video streams down to a lower resolution, with the promise that partner videos will not count against T-Mobile's data caps. However, YouTube pointed out that it is not a partner and its videos were being throttled, in clear violation of the clear "no throttling" rules from the FCC. T-Mobile took exception to my post about it and demanded corrections and clarifications, making a few different claims. After investigating the claims, I can say (1) that we will not be clarifying or correcting anything in the original post and (2) more importantly, it appears that T-Mobile is flat out lying in some of its claims. It's not dancing around the truth, it is claiming things that are simply untrue. This is the key claim that T-Mobile's PR person made to me:

Using the term “throttle” is misleading. We aren’t slowing down YouTube or any other site. In fact, because video is optimized for mobile devices, streaming from these sites should be just as fast, if not faster than before. A better phrase is “mobile optimized” or “lower resolution.”

This is clearly not true. While you can have a semantic debate about whether "throttling" is "optimizing," the facts with T-Mobile are pretty clear: it is NOT optimizing YouTube videos at all. It is 100% throttling them.

When Binge On first launched without YouTube as a partner, many people asked why, and T-Mobile's VP of Engineering, Grant Castle, explained that the reason was because it could not identify YouTube videos, since nearly all YouTube traffic is encrypted. Thus, T-Mobile admitted that it had no way to "optimize" YouTube videos:

T-Mobile says the problem is technical. The software it is using to deliver streaming video at lower-definition quality needs to be able to identify the incoming traffic as being video as opposed to, say, photographs or email. It can’t always do that with YouTube.

Most YouTube traffic uses a protocol called HTTPS, which T-Mobile can detect, but some portions may be using a less-used protocol called UDP that the wireless company has more difficulty reading, according to Grant Castle, vice president of engineering at T-Mobile. That means the carrier isn’t certain about the format of some streams coming from YouTube.

“YouTube is a little difficult,” said Mr. Castle.

Thus, the only thing that T-Mobile can do for many YouTube encrypted streams is not to "optimize" it at all, but to flat out throttle it down to speeds around 1.5 mbps. You can see this in the tests done by Dualsim.us and the following video.

Remember how T-Mobile in their message to me said that the "optimized" videos should show up "just as fast, if not faster than before." Yeah, that's bullshit. Watch the video below (I start the video about 5 minutes in -- the first five minutes mostly just show that the two phones are both on T-Mobile's unlimited network with similar speed connections -- at which point the video comparison is shown):

As you can see, rather than "just as fast, if not faster than before," what you see for the throttled -- not "optimized" -- video is, instead, something much slower. That's because T-Mobile appears to downgrade the data flow from ~12 Mbps down to something like 1.4 or 1.5 Mbps.

That's absolutely 100% throttling. There is no "optimization" going on because T-Mobile cannot optimize those videos, since they're encrypted.

T-Mobile is lying. Flat out lying.

And... in a bit of perfect timing, just as I was completing this post, I see that EFF has published the results of its own technical tests of BingeOn, which also confirm that there is no "optimization" here -- and got T-Mobile to admit it was lying. It's purely throttling:

Our last finding is that T-Mobile’s video “optimization” doesn’t actually alter or enhance the video stream for delivery to a mobile device over a mobile network in any way. This means T-Mobile’s “optimization” consists entirely of throttling the video stream’s throughput down to 1.5Mbps. If the video is more than 480p and the server sending the video doesn’t have a way to reduce or adapt the bitrate of the video as it’s being streamed, the result is stuttering and uneven streaming—exactly the opposite of the experience T-Mobile claims their “optimization” will have.

Given the difference between what T-Mobile implies they do and what we found, we contacted them to get clarification. They confirmed that they don’t do any actual optimization of video streams other than reducing the bandwidth allocated to them (and relying on the provider to notice, and adapt the bitrate accordingly).

In fact, the EFF study compared a hash of the download to a version that was on the server and found the files were identical (i.e., no "optimization" -- just purely throttling). Again, this is the exact opposite of what T-Mobile's PR person told me in demanding a correction. T-Mobile is lying.

EFF also discovered that T-Mobile's earlier statement that it can't detect encrypted video is also misleading, as the company now claims it can:

The second major finding in our tests is that T-Mobile is throttling video downloads even when the filename and HTTP headers (specifically the Content-Type) indicate the file is not a video file. We asked T-Mobile if this means they are looking deeper than TCP and HTTP headers, and identifying video streams by inspecting the content of their customers’ communications, and they told us that they have solutions to detect video-specific protocols/patterns that do not involve the examination of actual content.

Finally, EFF realized that even if you're just downloading the video (i.e., not streaming, but downloading for later viewing), you STILL get throttled:

The first result of our test confirms that when Binge On is enabled, T-Mobile throttles all HTML5 video streams to around 1.5Mps, even when the phone is capable of downloading at higher speeds, and regardless of whether or not the video provider enrolled in Binge On. This is the case whether the video is being streamed or being downloaded—which means that T-Mobile is artificially reducing the download speeds of customers with Binge On enabled, even if they’re downloading the video to watch later. It also means that videos are being throttled even if they’re being watched or downloaded to another device via a tethered connection.

A separate claim in the email from T-Mobile is more of the "tap dancing around the truth" variety. And it's the claim that T-Mobile made it clear from the beginning that it would be doing this to non-partner videos as well. Here's what the T-Mobile rep said in the email to me:

This is how Binge On has always worked. We said it from the stage, in press materials, on the web, and in customer notifications last month, and media covered it last month, as well.

This is extremely misleading. Nearly everyone I've spoken to among people who follow these issues had no idea that the "throttling" (not optimization) applied to non-partner videos. I, as a T-Mobile customer, also never received any such notice (though the PR person then forwarded me the "notification" email, so I guess technically I have now received it). Either way, I went back to look at the press release and T-Mobile's own page about Binge-On to see about how clearly the company really revealed that it would also be throttling non-partner video. And the company was not at all clear about it.

In the press release (not surprisingly), T-Mobile focuses on all the Binge On partners. To realize that it's also throttling other videos you have to carefully parse some confusing text buried in the 8th paragraph of the press release, which most people won't even recognize. Here are paragraphs four through eight -- with the relevant mention bolded (without that, you might miss it):

Binge On is open to any streaming video provider who meets the technical requirements, which are available online at www.t-mobile.com/bingeon. And it’s completely free for video streaming providers to join.

“With Binge On, no one pays—not the customers, not the video streaming services—and everyone wins,” said Legere.

Powered by new technology built in to T-Mobile’s network, Binge On optimizes video for mobile screens, minimizing data consumption while still delivering DVD or better quality (e.g. 480p or better). That means more reliable streaming for services that stream free with Binge On, and for almost all other video, it means T-Mobile Simple Choice customers can watch up to three times more video from their data plan. And, as always, T-Mobile has put customers in total control with a switch to activate or deactivate Binge On for each line in their My T-Mobile account. Binge On is all about customer choice.

So basically all of the press release is talking about how Binge On is about "free" video from partners, and then in the second half of a sentence, buried in the middle of a paragraph (eight paragraphs into the press release) is a tidbit about how "for all other videos" the bandwidth is downgraded (what T-Mobile falsely calls "optimized"). That is the farthest thing from being clear about what is happening.

Similarly, on the website for Binge On itself, this is far from clear. Most of the page goes on and on and on about how "you can stream all you want for FREE without using your data." The clear implication is that video streaming doesn't count against a datacap. Lower down it has the following:

What basically no one is going to realize is that the "Watch 3X more video" claim on the right is talking about non-partner video. They don't actually say that. In fact, given how so much of the focus is on how the video doesn't count against the data cap at all, the whole "3x more video" bit is actually kind of confusing, because they're both saying you can watch "as much video as you want" on the left, and then on the right, saying you can now watch 3x as much video. They are not being clear at all about this.

It's only if you go all the way to the bottom of the page and click to expand the first "question" about Binge On that it finally explains what this means:

I mean, it's really, really buried. Here's a screenshot of the whole page, showing you where this information is buried (and, remember, this is showing it to you after I've clicked the little "+" button to show more). Most people will miss it entirely:

So, yeah: T-Mobile is flat out lying in claiming that it "optimizes" YouTube, and it's being ridiculously misleading in arguing that it was abundantly clear about how Binge On would impact non-partner videos.

Now, the big question: will the FCC actually do anything about this?

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]]>that's-not-truehttps://www.techdirt.com/comment_rss.php?sid=20151231/18201233216Wed, 23 Dec 2015 08:26:13 PSTWhat Net Neutrality? T-Mobile Abusing Its 'Binge-On' Effort To Throttle Non-Partner VideoMike Masnickhttps://www.techdirt.com/blog/netneutrality/articles/20151222/16472733159/what-net-neutrality-t-mobile-abusing-binge-on-effort-to-throttle-non-partner-video.shtml
https://www.techdirt.com/blog/netneutrality/articles/20151222/16472733159/what-net-neutrality-t-mobile-abusing-binge-on-effort-to-throttle-non-partner-video.shtmlzero rating issue was a way for broadband providers to conduct a stealth war on net neutrality -- first putting in place "restrictions" that they could then "lift" for partners, pretending it was a consumer friendly move. Last month, T-Mobile introduced Binge-on, it's second such attempt at zero rating. Its first, Music Freedom, exempted some streaming music services from its data caps. Binge-On focused on video, but had a few oddities. Like Music Freedom, Binge On would make "select" video streaming platforms exempt from the data cap -- but in order to do that, it would downgrade the quality of those streams to 480p, a lower resolution than most are used to these days. It was notable that neither YouTube nor Amazon Prime were included "partners" in the launch.

But... some people started noticing some problems: specifically, even those services that have not partnered with T-Mobile started seeing their own videos downgraded. The complaints started to flow on Reddit: someone noticed that Amazon-owned Twitch.tv's videos were suddenly being throttled. Others noticed YouTube videos being throttled. In both cases, those users were able to "fix" the problem by going into their account and turning off Binge On, but it still seemed troubling that T-Mobile had decided to automatically turn on Binge On for users, downgrading streaming video, even for video providers who had not agreed to such provisions.

Degrading video quality this way violates the FCC’s no-throttling part of the net neutrality rule, which forbids reducing the quality of an application or an entire class of applications. Even though T-Mobile and its brilliant CEO, John Legere, have done much to shake up the mobile industry in positive ways (they even won me over as a subscriber), this is one practice that the company should, and probably must, abandon.

As a purely legal matter, T-Mobile cannot easily defend its actions by arguing that this discrimination is good for its users. The FCC has already rejected that argument in advance by adopting a “bright-line” rule for all technical forms of discrimination absent some special technical justification. After hearing from millions of Americans throughout 2014, the FCC decided earlier this year that “the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open Internet,” and named one of them throttling.

YouTube, which is owned by Alphabet Inc., said T-Mobile is effectively throttling, or degrading, its traffic. “Reducing data charges can be good for users, but it doesn’t justify throttling all video services, especially without explicit user consent,” a YouTube spokesman said.

T-Mobile -- which has never been a fan of the new net neutrality rules, seems to think that because the service is "optional" that makes it okay. But that ignores two key things: (1) the FCC's rules say no throttling and (2) even if it is optional, T-Mobile turned it on for everyone, without telling users, and has not made it at all clear to users what's happening. That is, in every complaint you see online, you'll notice that people have no idea that this service has been turned on.

That makes it hard to square with the idea that this is for the benefit of T-Mobile subscribers. T-Mobile's only statement on this issue so far is also totally disingenuous:

In a statement, the No. 3 U.S. carrier by subscribers said its customers “love having free streaming video that never hits their data bucket” and like “both the quality of their video experience and the complete control they have.”

Again, this is T-Mobile exempting certain services from the data caps it set up itself. If customers love having streaming video that doesn't hit their data caps, then there are all sorts of ways to do that, which don't involve messing up the user experience overall, and without surreptitiously turning this system on in a way that messes up the plans of users.

Over the last few months, we've seen basically all of the major telcos look for ways to test the boundaries of the new net neutrality rules. At some point the FCC is going to have to smack them down or the tests are going to get more anti-consumer and more blatant. And, again, don't be fooled into thinking this is a "pro" consumer move in that it exempts data from the cap. That's like someone tackling you and then demanding to be called a nice guy for giving you a hand to get back up. The data caps are set by T-Mobile itself. The argument pretending that an exemption is somehow consumer friendly should immediately be spun around to point out that the caps themselves are then clearly anti-consumer.

Either way, one hopes that the FCC is actually paying attention, otherwise the telcos are going to keep moving to walk all over the new rules, with plans like this one, figuring out where and how they can throttle or prioritize traffic based on the providers' own needs, rather than based on what the internet allows.

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]]>the-war-on-net-neutralityhttps://www.techdirt.com/comment_rss.php?sid=20151222/16472733159Thu, 15 Oct 2015 08:29:59 PDTViacom Once Sued YouTube For A Billion Dollars; Now It's Just Released Over 100 Movies For Free On YouTubeMike Masnickhttps://www.techdirt.com/articles/20151014/19355432536/viacom-once-sued-youtube-billion-dollars-now-just-released-over-100-movies-free-youtube.shtml
https://www.techdirt.com/articles/20151014/19355432536/viacom-once-sued-youtube-billion-dollars-now-just-released-over-100-movies-free-youtube.shtmlsued YouTube for $1 billion, arguing that it was nothing more than a piracy site. Of course, Viacom's case faltered, badly, when it was later revealed that over 100 of the videos it listed as infringing had been... uploaded by Viacom employees as part of a marketing strategy. That act alone showed that even Viacom employees recognized the site had "substantial noninfringing uses." After seven years of battling it out in court, the two sides finally settled last year. However, it does seem noteworthy that Paramount Pictures, the major Hollywood movie studio that is owned by Viacom just announced that it had posted over 100 of its own movies for free on YouTube in their entirety.

This is important for a variety of reasons, but most of all it shows that, once again, when legacy entertainment firms learn how to embrace new technologies, rather than sue them, they're better off. Legacy entertainment companies have basically tried to sue or kill every new technological innovation that somehow challenged new business models. They sued over radio, television, VCRs, cable TV, MP3 players, DVRs and internet video. And yet, once they learned how to use each of those, they realized how great these platforms were in helping to distribute, to promote and to monetize their works.

If Viacom had succeeded in its lawsuits and killed off YouTube, would these movies be available for free online today? I think most people would agree the answer is "no way."

This is a big part of the reason why I get concerned about attempts to shut down businesses that some insist are "nothing but piracy sites." The VCR was "nothing but a piracy tool." The MP3 player was "nothing but a piracy tool." Radio was "nothing but a piracy tool." And YouTube was "nothing but a piracy site." And yet... given the chance to grow and to innovate, these services show that they are successful because they're providing a better product. Suing them out of existence takes away opportunities like this, where companies learn that they can benefit from these (often free!) services to better promote, distribute and monetize their own works. It's easy to think that something that is often used for infringing works in the early days is never going to be anything useful or legitimate, but that ignores the history of innovation in this space. Every new innovation originally looked like a piracy tool. Until it no longer did. Perhaps, rather than trying to kill off every new service, Hollywood should take a lesson and realize that maybe it should be figuring out better ways to embrace them early on, rather than many years later.

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]]>funny how that workshttps://www.techdirt.com/comment_rss.php?sid=20151014/19355432536Fri, 11 Sep 2015 19:39:00 PDTEarly YouTube Musician Explains How Signing Major Label Deal 'Nearly Destroyed My Career'Mike Masnickhttps://www.techdirt.com/articles/20150909/17000032211/early-youtube-musician-explains-how-signing-major-label-deal-nearly-destroyed-my-career.shtml
https://www.techdirt.com/articles/20150909/17000032211/early-youtube-musician-explains-how-signing-major-label-deal-nearly-destroyed-my-career.shtmllay out all of the details. It's worth a read, as it's a story that is pretty common. That is not to say that signing a major label deal is necessarily a bad thing. For some artists it may be the right decision. But the way that major labels work is that you'll only get enough attention for the label to determine if you're "the next big thing" where all its revenue will come from for the next few years... and if things don't seem to be going that way, you'll be pushed aside quickly. The standard stat given is that 90% of major label deals "fail." That does not mean they are not profitable for the label. The way RIAA accounting works, the labels can make out like a bandit on many of those record deals, while the artist gets hung out to dry. That appears to be the case with Naomi as well.

She points out that she was one of the first artists to build up a large fanbase solely based on her YouTube and MySpace accounts. Here was her most popular song, Say It's Possible:

In the article, she talks about how she was connecting with fans and giving them a reason to buy. She talks about using YouTube to directly communicate with her fans, answering their questions, sending them messages and the like. And then, Universal Music came calling. And she made the very reasonable decision to sign with them, noting that while she had just pressed her own EP and quickly sold 5,000 of them in the first month they were available, she was still in debt, and a $250,000 advance was hard to pass up. It's easy to mock this decision, but you're probably not the one sitting there in debt with $250,000 on the table. That's why it's so tempting and why so many artists jump at the opportunity. It's not a crazy decision to make -- but it may present long term challenges, which is exactly what Naomi discovered.

Despite attracting attention for her success on YouTube, the label basically (1) had no understanding of YouTube and (2) recommended that she stop connecting with her fans. In other words, the exact opposite of what artists need to be doing in this internet connected era:

Contributing further to their feelings of betrayal was the mandate that came from my team at the label. They needed me to be “less accessible” and more untouchable. All these kids on YouTube saw me as an equal, as “one of them” – did I want to be a YouTube star, or did I want to be a rock star? They threw down the gauntlet, and there was no question in my mind. I wanted to be a rock star.

I handed over my mailing list and social media logins to the record label. I trusted this team of professionals to grow it into something much bigger than I could ever hope to create on my own. I backed off, disappeared, focused on writing songs and hanging out with the “right” people rather than connecting with my fans and the community I’d grown to love and depend on, prior to signing my deals. I figured I’d play by their rules for a little while, build my career into something even bigger, and reunite with my community once the label was satisfied with my rock star status.

Not surprisingly, it didn't work out that way. The label also pushed her to make a more commercial album, which she hated:

The producer I worked with told me we only had one shot, and I needed to make the album he wanted to make – with its “radio-ready” production – and once I had a few hits, I could make any album I wanted. So I made the album he wanted to make, and things didn’t happen the way he said they would. Instead of the big commercial radio success that would give me the freedom to seamlessly transition into the music I truly wanted to make, I had a big commercial flop (I think we sold something like 25,000 albums), an album I didn’t like, and I’d wasted what could have been the biggest opportunity of my life. The exposure I built independently on YouTube was more than the record label ever did for me, and I couldn’t believe I’d been so willing to hand it over for a longshot gamble on mainstream stardom.

And, of course, once she finally got out of the major label system, the audience that she had originally connected with, but forsaken, had moved on. As she notes:

My biggest takeaway from this time was a lesson in authenticity. It’s tempting to listen to people who want to change us, even just a little bit, and steer us in a direction that isn’t authentic. It’s easy to doubt ourselves, especially when we’re just starting out. We think people with more experience know better than we do about what’s best for us, and it’s simply not the case. We fall for the hard sell, the glitz and glamour, but for every massive major label success, there are dozens of disappointments and disastrous failures.

This isn't a huge surprise. For well over a decade we've been pointing out stories of successful artists who have built up huge fan bases online -- and the one factor that shows up again and again and again is authenticity. That's a huge part of the whole idea of connecting with fans. Actually being authentic is a great way to connect with like-minded fans, but it has traditionally gone against the cookie-cutter model of the major labels (though, to be fair, some are finally starting to figure this out, if only way too late).

Either way, Naomi's story is a good read, and should be worth thinking about for others who are tempted by the deals presented to them when they're first building a following. Put it in the group with the stories about RIAA accounting that further explain how a big advance may not actually be so big once you understand all the details.

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]]>have heard this beforehttps://www.techdirt.com/comment_rss.php?sid=20150909/17000032211Thu, 3 Sep 2015 10:31:56 PDTEverything The Same Is Infringing: How Hugh Hefner Used Mario Bros. To Show YouTube's Copyright System SucksTimothy Geignerhttps://www.techdirt.com/articles/20150831/05364632117/everything-same-is-infringing-how-hugh-hefner-used-mario-bros-to-show-youtubes-copyright-system-sucks.shtml
https://www.techdirt.com/articles/20150831/05364632117/everything-same-is-infringing-how-hugh-hefner-used-mario-bros-to-show-youtubes-copyright-system-sucks.shtml
There's an old saying that those that lie down with dogs will get back up with fleas. One modern derivative of that maxim might be: if you bend over backwards for copyright censors you will become censors yourself. No better example of this can be found than YouTube's ContentID system, the automated platform that scours YouTube videos looking for uploads of identical audio or video content and proactively takes them down in favor of the original content owner. That's how it works in theory, that is. In practice, ContentID appears to be most useful in taking down fair use content, trolling legitimate creators, and even silencing political speech, supposedly the most revered thing in this great Republic of ours. It's typical in these cases for the automation to be blamed, but that's a mistake. The real blame lies with Google for implementing such a flawed system, with the entertainment industry and trolls for abusing it, and with all of us for simply accepting it. Everyone, in other words, is to blame.

I came to that conclusion recently, when Hugh Hefner used Mario Bros. to show me how silly all of this is. The whole thing started when a Kotaku writer uploaded a video of some Mario Maker levels that play themselves.

Two days ago, I uploaded a video to YouTube. It featured some awesome automatic Mario Maker levels that basically play themselves. Today, I was dinged with a copyright notice for that same video. The claimant was none other than...Playboy? I’m serious. I didn’t get flagged by Nintendo. Rather, I got flagged by Hugh Hefner’s operation.

Playboy, obviously, does not own Mario. It did not create Mario Maker. It did not build the level on display in my video. And yet my video was still flagged. What gives?

What gave was that Playboy had uploaded a video that contained one of the same levels in the other video. Because these levels play by themselves, rather than being played by a human, the videos have the exact same content. So, faster than a Mario Brother running with the 'B' button mashed down, ContentID flagged Kotaku's video as infringing and sent out a notice. Other users likewise had videos of that Mario Maker level flagged in favor of Playboy, which I am very much certain doesn't own any of the IP surrounding Nintendo's center-piece franchise. Most, like the Kotaku writer, submitted disputes which were resolved quickly. Playboy, for its part, has been active in getting all of the claims dismissed...

...which is entirely besides the goddamn point. ContentID was dinging uploaders for copyright violations in an automated fashion, with no checks, on content owned by an unrelated party. That doesn't make any sense. And, in some cases, there can be actual harm done.

When you get flagged, the claimant has a whole 30 days to review your dispute, during which your video typically stays up while also making money for the claimant. Sometimes, the claimant will even be able to block the video from being viewed entirely. Even if the dispute gets dismissed, it might mean waiting days if not an entire month for the motion to actually get through. In the meantime, any YouTuber who supports themselves with ads and just wanted to show off the level to their subscribers, or perhaps added some good commentary to the footage, will lose revenue (as well as gain an unnecessary headache.)

Personally, I'd love to see "An unnecessary headache" as the epitaph on ContentID's gravestone.

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]]>mario-pron?https://www.techdirt.com/comment_rss.php?sid=20150831/05364632117Thu, 2 Jul 2015 15:52:26 PDTGerman Court Says YouTube Isn't Liable For Infringement, But Wants A Notice-And-Staydown ProcessMike Masnickhttps://www.techdirt.com/articles/20150702/13004331529/german-court-says-youtube-isnt-liable-infringement-wants-notice-and-staydown-process.shtml
https://www.techdirt.com/articles/20150702/13004331529/german-court-says-youtube-isnt-liable-infringement-wants-notice-and-staydown-process.shtmlmany years. Five years ago, I was at Berlin Music Week and it was one of the major points of discussion. YouTube was blocking all music videos, since GEMA insisted that YouTube should pay rates on par with digital sales (iTunes) rates for each play. Musicians I met with in Germany were furious at GEMA's obsessive control over their own music -- with one musician even showing me how he had an official website that GEMA was aware of, and an "unofficial" website his band showed to fans, which offered up free music (something GEMA refused to allow). The various court rulings in the case have been a mixed bag with some finding YouTube liable for user uploads, and even saying that YouTube needs to put in place a keyword filter.

German Courts also haven't been too happy with YouTube's custom message for (accurately) explaining why so much music is blocked in Germany. While YouTube and GEMA have tried negotiating a deal (as collection societies in basically every other country have done), in Germany it never seems to happen.

The latest ruling, in one of the key court cases is an appeals court ruling that upholds the lower court ruling saying that YouTube is not liable for infringing uploads by users and doesn't have to proactively search for infringing content. This is good. But, the court also appears to suggest that YouTube's ContentID is not enough -- and suggests it supports a sort of "notice and staydown" kind of system:

“However, if a service provider is notified of a clear violation of the law, it must not only remove the content immediately, but also take precautions which ensure that no further infringements will be possible.”

While that may appear reasonable at first glance, in practice it's a mess. The only way to even try to do that is to over-aggressively block any and all uses of that particular work -- which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked.

A more detailed ruling is expected in a few weeks, but this seems like a mixed bag.

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]]>that's-troublinghttps://www.techdirt.com/comment_rss.php?sid=20150702/13004331529Tue, 23 Jun 2015 11:40:58 PDTYouTube's Inane Response To Handing Popular YouTuber's Channel To Cosmetics Company: Blame The AlgorithmsMike Masnickhttps://www.techdirt.com/articles/20150622/23534431429/youtubes-inane-response-to-handing-popular-youtubers-channel-to-cosmetics-company-blame-algorithms.shtml
https://www.techdirt.com/articles/20150622/23534431429/youtubes-inane-response-to-handing-popular-youtubers-channel-to-cosmetics-company-blame-algorithms.shtmlthat's his name. But along comes Lush Cosmetics, and YouTube apparently just hands his channel over to the company. That's ridiculous enough, but it gets even more bizarre, when reporters asked Google to explain:

Google said it was "sympathetic" to Mr Lush's situation and that the decision was made by an algorithm.

Oh, come on. Yes, Google pointing to its algorithm making decisions makes sense when it comes to issues at scale around things like search results. But blaming taking away someone's username on an algorithm just seems ridiculous.

And then there's this:

[Lush Cometics] told the BBC it had not requested the change but would not say if it would give the address back.

Okay. So let's just work through this:

Matthew Lush registers his YouTube name "Lush" in 2005.

He spends years building up a massive following.

A decade later, a cosmetic company that did not ask for it is simply given Matthew Lush's popular YouTube username, based on "an algorithm" deciding this.

And Google insists there's no way to fix this.

Really? Yes, I know some people fear that science-fiction future in which the giant AI in the sky makes algorithmic decisions about what's best for us ("I'm sorry, Dave, I'm afraid I can't do that"), but I hadn't thought we were quite there yet. Because we're not.

It seems likely that what's missing from the BBC story is that there was some sort of naming conflict brought on by the various attemps to shift around YouTube naming conventions, integrate it with Google+ and all of that. In the end, there was probably some sort of conflict with two "Lush" usernames, and Google's "algorithms" gave the account to the cosmetics company instead. At least that's my interpretation of this statement:

Google said its algorithm decided which address Lush Cosmetics was given, based on data from YouTube, Google+, its search engine and other sources.

But if that's the case, at the very last, Google could be a lot clearer and upfront about it. And it seems to be a mess brought on by the company's own decisions about its username conventions. To play it off as just "well, those nutty algorithms again, nothing can be done" seems pretty ridiculous.

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]]>the-algorithms-did-ithttps://www.techdirt.com/comment_rss.php?sid=20150622/23534431429Mon, 8 Jun 2015 12:35:56 PDTYouTube Silences Six Hours Of DARPA Robotics Finals... Because Of One Song Briefly In The BackgroundMike Masnickhttps://www.techdirt.com/articles/20150608/11320031274/youtube-silences-six-hours-darpa-robotics-finals-because-one-song-briefly-background.shtml
https://www.techdirt.com/articles/20150608/11320031274/youtube-silences-six-hours-darpa-robotics-finals-because-one-song-briefly-background.shtmla giant robotics competition this weekend, known as the DARPA Robotic Challenge, or DRC. It was full of amazing robots -- though everyone seems focused on the ones that fell over, despite the amazing advancements in robotics that were on display.

One bit of "robotics," whose best work is not on display, is the robotic nature of YouTube's ContentID copyright censorship. If you go to check out the six hour YouTube video of the DRC Finals Workshop on YouTube you'll get to witness everything, but not hear a damn thing. Because, apparently, there was a copyright-covered song playing somewhere in the background, YouTube muted the whole damn thing:

So, yup, rather than learning about the latest advancements from our soon to be robotic overlords, we'll just silence everything so someone's copyright isn't infringed because it was playing quietly in the background at a daylong event.

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]]>fun-with-contentidhttps://www.techdirt.com/comment_rss.php?sid=20150608/11320031274Tue, 19 May 2015 01:00:30 PDTYouTube Reinstates Metal Gear Video Konami Took Down, Warns Konami Not To Be JerksTimothy Geignerhttps://www.techdirt.com/articles/20150514/10023630997/youtube-reinstates-metal-gear-video-konami-took-down-warns-konami-not-to-be-jerks.shtml
https://www.techdirt.com/articles/20150514/10023630997/youtube-reinstates-metal-gear-video-konami-took-down-warns-konami-not-to-be-jerks.shtmldiscussing Konami getting YouTube to take down a video it didn't like, one produced by YouTuber Super Bunnyhop, which discussed a supposed breakup between the gaming giant and famed game-producer Hideo Kojima. The excuse for the takedown was apparently something like half-a-minute's worth of game footage from the Metal Gear Solid franchise, a significant portion of which was simply one game's title screen. YouTube, with its content-makers friendly notice/takedown policy, complied with the takedown. Often times, that would be the end of the story. We'd all cry foul, complain that copyright sucks, and head on to the next story.

This time, however, is different. Super Bunnyhop challenged the takedown with a notice to Google and Google responded by both reinstating the video and warning Konami to stop screwing around. After reinstating the video, here is what YouTube sent to Konami.

It's a standard notice Google sends out when takedowns aren't on the level, but it's still nice to see. Not only does the letter let Konami know YouTube is concerned over the bullshit takedown, but it also helpfully gave the company a quick primer on fair use. There is some polite language requesting additional information should Konami still want to claim the video to be infringement, but any cursory glance ought to be enough to know that the whole thing falls under fair use. YouTube also sent Super Bunnyhop a notice that the video had been reinstated.

"This may be the first time YouTube has quickly stepped in and reviewed a bogus copyright claim for a gaming video,” [Super Bunnyhop] said to me over email. “If that’s the case, then my situation may be breaking new ground, and this could be good news for YouTubers everywhere.”

Yeah, there's actually no real new ground being broken here. YouTube sends these letters out all the time and it reinstates videos like this when the takedown is crap as well. That said, every fair use victory is a step in the right direction and it's worth reminding everyone out there that the takedown doesn't have to be the end of the story for non-infringing videos. Sometimes intellectual property is used for censorship and there is little anyone can do about it. But that's not always the case and it's important to fight it wherever possible.

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]]>solidhttps://www.techdirt.com/comment_rss.php?sid=20150514/10023630997Mon, 27 Apr 2015 05:47:00 PDTDan Bull's 'Death To ACTA' Video Silenced After Claim From Rapper Who Used The Same SampleMike Masnickhttps://www.techdirt.com/articles/20150424/16260830785/dan-bulls-death-to-acta-video-silenced-after-claim-rapper-who-used-same-sample.shtml
https://www.techdirt.com/articles/20150424/16260830785/dan-bulls-death-to-acta-video-silenced-after-claim-rapper-who-used-same-sample.shtml"Death to ACTA" song and video, which is a parody of Jay-Z's "Death of Autotune." In 2011, we further wrote about the MP3 of that song (which Bull distributes willingly on file sharing platforms) being taken down from Mediafire due to a questionable takedown request. Now, years later (well after ACTA is pretty much long dead), Dan's discovered that his video on YouTube was just silenced due to copyright claims.

He wondered what it was about and discovered two claims on the video -- one being ridiculous, with the other being merely questionable.

The ridiculous one is the claim about Bigg Brass's song, "Death of Fake Rapperz". That one, like Dan's, uses the backing track from Jay-Z's "Death of Autotune." The actual track that Jay-Z sampled is "In the Space" by Janko Nilovic and Dave Sarkys. It's likely that Jay-Z licensed that track (though he's run into legal trouble at times for failing to license some tracks). If anyone would have a claim over Bull's track then, it would likely be those guys. Here, it appears that Bigg Brass is working with the big digital distributor, The Orchard, who didn't even bother to figure out that Bigg Brass was using a sample of his own and just went hog wild stupidly going after others' music. The Universal Music Group claim is slightly more reasonable, but only slightly. Again, the actual music is not Jay-Z's but Nilovic's and Sarkys' and they don't appear to be the ones complaining.

At the same time Jay-Z has been quite public about his support for artists remixing his tracks into other songs saying that he's "honored" when it's done. It may be that Jay-Z doesn't hold the copyright for DoA, but even so... it seems like a pretty weak claim to go after Dan Bull. And, of course, you can find a ton of other videos that use the same backing track for their own songs. Here's one. And another. And another. And another. And another. And another. And another. And another. And there are a lot more. I'm just getting tired of cutting and pasting.

And none of those other ones are silenced.

Just Dan's. It almost makes you wonder if Universal Music has... a political reason for trying to silence Dan's songs, such as the fact that it mocks an international agreement that the recording industry was highly supportive of. And they say copyright isn't used to censor free speech...

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]]>wait, what now?https://www.techdirt.com/comment_rss.php?sid=20150424/16260830785Tue, 7 Apr 2015 15:20:00 PDTOnce Again, Political Speech Is Silenced By Copyright/ContentIDMike Masnickhttps://www.techdirt.com/articles/20150407/14450930576/once-again-political-speech-is-silenced-copyrightcontentid.shtml
https://www.techdirt.com/articles/20150407/14450930576/once-again-political-speech-is-silenced-copyrightcontentid.shtmlgot annoyed at YouTube taking down political videos based on copyright claims. During the last Presidential election, a Mitt Romney TV ad featuring President Obama singing an Al Green song was taken down via a copyright claim. And now, 2016 Presidential candidate Rand Paul has discovered that his announcement speech from Tuesday morning has been taken down. This wasn't a DMCA takedown, but yet another case of YouTube's over-eager ContentID doing the job:

Apparently the announcement kicked off with an anti-Wall Street country song, "Shuttin' Detroit Down" by John Rich, whose copyright is held by Warner Music Group.

Of course, Rand Paul has been sort of a mixed bag on copyright. He was one of the first Senators to speak out against SOPA/PIPA in 2011. But, not long after that, he and his father Ron put out a weird internet freedom "manifesto" that appeared to argue for much stronger copyright laws, and which argued that the public domain was an evil "collectivist" threat that was against basic property rights.

Of course, it would be nice if this little incident led candidate Rand Paul to support fixes to copyright law and the DMCA, but as some are pointing out, assuming this really was a ContentID takedown, changes to the DMCA wouldn't much matter -- since ContentID is a private solution, outside of copyright law. That said, it was put in place, in part, to help keep YouTube from getting sued over copyright claims, so a fixed DMCA might lead to a better ContentID offering. Unfortunately, despite a history of copyright and ContentID being abused against political candidates, it still hasn't really resulted in them taking a real platform stand on the problems of copyright law today and how it impacts free expression. It's unlikely that Rand Paul is going to really take a stand on this, especially given that weird manifesto from a few years ago.

Google's distribution of jihadi videos on Google’s monopoly video search platform certainly looks like material support of terrorists which is itself a violation of the federal law Google claims to hold so dear. (See 18 U.S. Code §2339A and §2339B aka the U.S. Patriot Act.)

Of course, there are all sorts of problems with the Patriot Act, including its definitions of "material support of terrorism," but to stretch the law to argue that providing an open platform and simply not removing videos fast enough (the videos in question all got removed pretty rapidly anyway, but not fast enough for Castle) is somehow "material support for terrorism" is flat out crazy. It stems from the same sort of confused logic that Castle has used in the past, arguing that Google and others must magically "just know" what is infringing and what is not -- suggesting a true lack of understanding about the scale of offerings like YouTube and the resources needed to sort through all the content.

We were inclined to simply dismiss Castle's nuttiness to the category of "WTF" where it belongs... until at a conference earlier this week, a DOJ official, John Carlin, who holds the role of assistant attorney general for national security, appeared to suggest that anyone helping ISIS's social media campaign could be guilty of "material support" for terrorism:

John Carlin, the assistant attorney general for national security, told a cybersecurity conference in Washington on Monday that officials could try to blunt ISIS’s violent PR operation by essentially trying propagandists as terrorists. He suggested the Justice Department could bring prosecutions under the law against providing material support to a terrorist organization. His remarks were believed to be the first time a U.S. official has ever said that people who assist ISIS with online media could face criminal prosecution.

Carlin was asked at the conference whether he would “consider criminal charges” against people who are “proliferating ISIS social media.”

His answer: “Yes. You need to look at the particular facts and evidence.” But Carlin noted that the United States could use the material support law to prosecute “technical expertise” to a designated terrorist organization. And spreading the word for ISIS online could count as such expertise.

Carlin seems more focused on someone tweeting a link to ISIS propaganda or something along those lines, which would raise significant First Amendment issues, but his comment about "technical expertise" could certainly be turned around and put upon YouTube, Twitter, Facebook and other providers of social media tools. That would create a huge mess, and open a Pandora's box that would undermine one of the key premises of the internet that has made it so successful.

Is the DOJ really looking to undermine the entire internet, just because some terrorists have figured out that it's a good way to get out their message?

Meanwhile, if you want to see just how far this sort of ridiculous thinking takes you -- at the same time that people like Castle and Carlin are arguing about how YouTube may be supplying material support for terrorists, YouTube was deleting videos that were being used to document ISIS war crimes. YouTube has been rushing around trying to take down all kinds of ISIS and other terrorist content for a while now -- ever since then Senator Joe Lieberman demanded that YouTube block terrorist videos. And, the end result is that important channels that catalog and archive evidence and documentation of war crimes are being taken down. And, this is not the first time this sort of thing has happened.

When you start accusing these platforms of having some sort of liability (potentially criminal liability in the form of "materially supporting terrorists" for merely providing an open platform that anyone can use, you are more or less guaranteeing that important content, such as that which documents war crimes and atrocities gets banned as well. Is that really what Castle and Carlin are looking to do?

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]]>depends on your point of view apparentlyhttps://www.techdirt.com/comment_rss.php?sid=20150224/12545730130Mon, 26 Jan 2015 13:10:00 PSTYouTube's Offer To Musicians Isn't As Bad As Some Believe, But YouTube Should Still Change Its PoliciesMike Masnickhttps://www.techdirt.com/articles/20150126/05182729815/youtubes-offer-to-musicians-isnt-as-bad-as-some-believe-youtube-should-still-change-its-policies.shtml
https://www.techdirt.com/articles/20150126/05182729815/youtubes-offer-to-musicians-isnt-as-bad-as-some-believe-youtube-should-still-change-its-policies.shtmlkick musicians off of YouTube if they didn't agree to license their music to the subscription service it was building. At the time, we wrote about how this was overblown. As we noted, anyone could still post whatever videos they wanted to YouTube, it was just a question of whether or not you would be in YouTube's partner program, which would allow the artists to use ContentID to monetize other people's videos and a few other features as well. After I wrote that, musician Zoe Keating, who I consider a friend, emailed me the details of her own struggle with YouTube over this issue, and how the deal being offered actually was pretty crappy for her. Late last week, she posted a similar discussion on her blog, asking what she should do about YouTube, because she wants to use ContentID, but doesn't like some of the other terms in the deal.

Zoe's post has since gone somewhat viral, with many people insisting that YouTube's terms are absolutely crazy. Of course, when you look at the details, the terms are not really that crazy. However, YouTube should change them. Let's dig into the situation to explain why.

Zoe's main concerns were these terms:

1) All of my catalog must be included in both the free and premium music service. Even if I don’t deliver all my music, because I’m a music partner, anything that a 3rd party uploads with my info in the description will be automatically included in the music service too.

2) All songs will be set to “monetize,” meaning there will be ads on them.

3) I will be required to release new music on YouTube at the same time I release it anywhere else. So no more releasing to my core fans first on Bandcamp and then on iTunes.

4) All my catalog must be uploaded at high resolution, according to Google’s standard which is currently 320 kbps.

5) The contract lasts for 5 years.

As she noted, if she didn't sign the agreement, her YouTube channel would be blocked -- though, as we explained in our post last year, and as Zoe added in an update -- she could take her existing YouTube channel out of the partner program and keep it up. However, in doing so, she would give up the ability to monetize her music under the same terms.

Why these terms aren't entirely insane: From my reading of it, YouTube's concern is that consumers who pay for YouTube's fee-based music service will be reasonably angry if there is music they can find on the good old-fashioned free side of YouTube, but which is not accessible after they pay. From a consumer experience standpoint, that is kind of a crappy situation. You could definitely see some subscribers who get frustrated. In fact, I'd bet that there'd be some blog posts somewhere of someone bitching out YouTube's paid service for not having certain music that was available on the site for free... and that post would likely go viral as well, with people talking about how crappy YouTube's paid service was. Also, it wouldn't surprise me if some enterprising copyright holder somewhere would come up with some sort of legal theory involving suing YouTube over this, saying that it now knows which tracks are unlicensed, and thus has to proactively take them down. That is, it's entirely possible that without these requirements, YouTube goes back to facing a massive copyright liability problem.

Why YouTube should change its terms anyway: These are truly edge cases. Most musicians do seem fine with being in the various services, but if they (like Zoe) want to just to make use of ContentID, but not release all their music on YouTube, that should be allowed. As Zoe has told me in the past, the thing she likes about ContentID is the ability to pick and choose what videos to monetize. Use her music in a school project -- and she just let's it go and is happy to see. Use her music in a big commercial feature, and she'll click the button and get some money out of it. But the ContentID portion should be separate from the "release my music" portion.

On top of that, the requirement to release all music on the service, combined with the similar requirement that you have to release the music on YouTube the same time as on any other platform, is unnecessary. Yes, YouTube wants to make sure that its catalog competes with everyone else's. And, fragmenting the music world with "exclusives" is generally a crappy experience, but there should be some reasonable way to allow Zoe to do things like offer up songs to her biggest fans on Bandcamp first. YouTube should be able to create terms that accommodate that, and it's a shame that the company won't do so.

In the end, most of the terms are not really that unreasonable. It only creates an issue in special cases where someone wants to do something a little bit different. YouTube is left with the choice of which crappy edge case it's going to have to make a mess of: either the one where a musician wants to do something a little different, or the one where some consumers might get annoyed that certain music isn't available on its service. YouTube went with option (a), but there's really no reason that the company can't be a little more flexible in designing terms that account for cases like Zoe's.

The other issue is that, once again, YouTube has done an absolutely dreadful job explaining itself. This is not the first time this has happened. In fact, it seems to happen with alarming frequency that when YouTube makes these kinds of policy changes, it doesn't do a good job (or any job at all) of explaining them to the public in a way that makes sense. Frankly, the company could do a much better job being open and transparent about the policy choices it makes and the reasons why it does these things, but for whatever reason, it chooses not to do so.

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]]>things-can-be-fixedhttps://www.techdirt.com/comment_rss.php?sid=20150126/05182729815Mon, 12 Jan 2015 07:45:46 PSTProminent YouTube Personality Locked Out Of His Account After A Bogus Copyright ClaimTim Cushinghttps://www.techdirt.com/articles/20150109/14101429657/prominent-youtube-personality-locked-out-his-account-after-bogus-copyright-claim.shtml
https://www.techdirt.com/articles/20150109/14101429657/prominent-youtube-personality-locked-out-his-account-after-bogus-copyright-claim.shtml
Another bogus takedown targeting a prominent YouTube personality. In other words, business as usual for the world's largest video platform. This time it's Jacksepticeye, a very popular creator of videogame-related videos, most of which utilize in-game footage, "Let's Play"-style, as well as plenty of related (and unrelated) commentary. At the risk of sounding like The Narrator in "Fight Club," I know Jacksepticeye because my boys know Jacksepticeye. [There is no generation gap because of cultural osmosis. Discuss.]

One of YouTube's most known gamer guys, Jacksepticeye, took to his Twitter account on Wednesday morning citing copyright claims against him. The claims were made by Outfit7 Limited, the entertainment company that created the Talking Tom and Friends franchise.

Here are the tweets:

Apparently one of my Evie and Talking Angela vids copyright infringed on something and if I don't acknowledge it my account will be deleted

Apparently one of my Evie and Talking Angela vids copyright infringed on something and if I don't acknowledge it my account will be deleted

This wasn't some normal copyright strike either, I can't get into my youtube account now unless I answer copyright questions

So @Outfit7 are the ones who flagged the video. The owners of Talking Angela because I had her talking to Evie :/

Now, the question of fair use will be addressed here because the limitations of YouTube's system won't. Firing up an app to talk to a bot isn't copyright infringement. The app will talk to whoever will chat with it (and vice versa, in terms of CleverBot). Recording this interaction doesn't violate Outfit7's copyright anymore than someone recording their siblings/kids talking to it. The app exists to talk and presumably Outfit7 would like more people to download the Talking Angela app because in-app purchases is a numbers game. The more people that try it out, the more likely the chance that some of them will start tossing money into the company's revenue stream.

So, why take it down? Who knows? But considering the outcome of this situation, it appears it may have been a mistake -- albeit the sort of mistake that is both a) far too common and b) engenders ill will towards the entity who screwed up.

This is Jacksepticeye's latest tweet on the takedown.

The copyright strike against me has been retracted and everything is back to normal :D

The copyright strike against me has been retracted and everything is back to normal :D

Now, this doesn't necessarily mean Outfit7 came to its senses and walked back its erroneous takedown. It could be that YouTube pulled the strike because it wasn't actually an infringing video. But the former is much more likely than the latter, although there's been no public confirmation from Outfit7 itself.

The video itself still remains dead, at least at its original URL. Perhaps Jack will have to re-upload or he has decided to keep the video offline until he hears more from Outfit7… just in case. Either way, copyright gets in the way of creation again, and someone who makes a living on YouTube came this much closer to losing his source of income -- not the sort of thing that exactly endears IP rights to the general public.